This episode focuses on the 1973 lawsuit filed against Vanderbilt University by CBS, in which it was claimed that the Vanderbilt Television News Archive’s recordings of the CBS Evening News violated CBS’s property rights. This episode features excerpts of recent conversations with former Vanderbilt Library Director Frank Grisham and University of California-Irvine Associate Professor Lucas Hilderbrand, and excerpts of 1978 interviews with former Archive administrator Jim Pilkington and the Archive’s founder Paul Simpson.

Citation: Hilderbrand, Lucas. 2009. Inherent vice: bootleg histories of videotape and copyright. Durham: Duke University Press.

[00:00] [background music]

Unidentified news anchor: [00:01] The CBS Television Network filed a lawsuit in Nashville Federal District Court today against Vanderbilt University.

Lucas Hilderbrand: [00:08] Most of my time was actually spent in university archives going through, essentially, all of the documents from the lawsuit with CBS.

Frank Grisham: [00:16] But we could have folded, because it was a nasty thing for a university to be sued by CBS.

Russ Mason: [00:24] Hi, I’m Russ Mason. The focus of this month’s News Knowledge episode is the lawsuit filed by CBS in 1973 against Vanderbilt University. We’ll hear from University of California, Irvine, Assistant Professor of Film and Media Studies, Lucas Hilderbrand, whose 2009 book, “Inherent Vice: Bootleg Histories of Videotape and Copyright,” includes a chapter on the lawsuit. Retired TV News Archive Director John Lynch and I also discussed the lawsuit with former Vanderbilt Library Director Frank Grisham during our oral history interview with him earlier this year. But to begin, let’s listen to the Archive’s first administrator, Jim Pilkington, describe how he learned that CBS had filed suit against Vanderbilt.

Jim Pilkington: [01:11] On the afternoon of December the 20th, 21st, I guess it was, 1973, it was the Friday before Christmas. The university offices were closing that day. Of course, school had been out for some time, but the university offices were closing. We were going to be off the Monday of Christmas Eve and Christmas Day. It was the last day before Christmas, and the little Christmas parties, and so forth. There was a snow on the ground at that time. We looked out the window to see the library that afternoon. We saw a cameraman from one of the local television stations taking pictures of the library. We thought, seasonal scenes, snow on the ground, the magnolias in the snow, that sort of thing, and didn’t think too much about it. About four o’clock, we were packing up the remnants of our cookies and punch to go take off for the holidays, and the news office in the administration building called and said, “The New York Times has just called and asked, ‘What’s this about this lawsuit that CBS has filed against you?’” So that was our Christmas present from CBS that year.

Russ: [02:14] The Archive, having first begun recording on August 5th, 1968, was just over five years old on that late December afternoon in 1973. But let’s back up a bit further in order to better understand the legal landscape that existed at that time, regarding the copyrighting of audiovisual works. During my recent conversation with Professor Lucas Hilderbrand, he explained the status of CBS’s news broadcasts at that time.

Lucas: [02:43] One of the things that I think is really fascinating about this particular moment is that when the Archive started doing the recordings, CBS actually was not copyrighting its broadcasts, because there really wasn’t a way to record off-air and no one was doing it, so there was actually no need to copyright these things, because there was no way to copy them at that time.

[03:10] So when Vanderbilt begins doing this, they actually aren’t really violating copyright, because what they’re copying isn’t copyrighted, because no one is recording off-air. So one of the things that you see in the legal documents from the lawsuit is that CBS begins copyrighting it, but begins changing how it’s copyrighting it, because there’s not a clear way to copyright it.

[03:34] In the ’60s, the Copyright Office wasn’t allowing for copyrights of live broadcasts. The NFL had tried to copyright its broadcasts of the football games and the Copyright Office was like, “You can’t copyright something that’s live.” That’s something that begins to be changed, and that CBS is trying to find ways to copyright things. By the early to mid ’70s, the Copyright Office is accepting certain kinds of things as at least partial copyright, so whether it’s still frames from broadcasts or transcripts or elements, and eventually, the Copyright Office begins recognizing that live television can be copyrighted. I think that’s partially because Simpson and the Vanderbilt Television News Archive had figured out ways to record live television, which before the late ’60s you couldn’t really do, and the only place that that was already happening was the Department of Defense, which was recording the news to study how Vietnam was being discussed.

Russ: [04:49] The Simpson that Professor Hilderbrand just mentioned was, of course, the Archive’s founder, Paul Simpson. In this 1978 interview with him, he discusses his own efforts to determine if anyone else in the country was already recording the news on a daily basis.

Paul Simpson: [05:04] First of all, before we started, in the summer of ‘68, I called all over the country to find out if anybody was doing it. I did not want to get involved in doing something somebody else was doing. I heard that a university in the state of Washington had a collection of news. Turned out it was a radio collection of old CBS news. I heard that the National Defense Department was taping the news programs, so I called and talked to them and found that they did tape them. What they did was to take out of them the material involving Vietnam, put it together, and they sent it to their commanders in Vietnam so they could see what the American people were seeing about Vietnam. Other than that, I found nobody was doing it. The Library of Congress was not doing it. And so, that’s the reason we started it.

Russ: [05:54] For the first three years of its existence, the Archive did nothing more than record the news, label the tapes, and place them on a shelf in the Vanderbilt Library. Then, as the Archive developed its methodology and began abstracting its 1972 recordings and creating an index to those abstracts, Jim Pilkington recalls that CBS began questioning the legality of the Archive’s activities.

Jim: [06:19] CBS raised objections in 1972, shortly after the first number of the index came out. They said that we were in violation of what at that time they called the Common Law Copyright. We agreed to talk with them about the matter. That was not followed up. The next we heard from them was in the summer of 1973, when they said that we were in violation of a statutory copyright. They had started registering the CBS Evening News with Walter Cronkite, as an unpublished motion picture other than a photoplay in April of ‘73. There was no mark or indication on the broadcast that this had been done. We were in conversation with CBS from July of ‘73 until November of ‘73 in letters and conversations.

Russ: [07:15] And then CBS filed their suit a month later. In Simpson’s own book about the Archive’s early history, he writes that in July of 1973, Vanderbilt Chancellor Alexander Heard received a letter from Nashville attorney Val Sanford on behalf of CBS, who informed the Chancellor that CBS had begun registering the CBS Evening News with Walter Cronkite with the Copyright Office back in April of that year, and that they intended to sue Vanderbilt for violation of CBS’s property rights if the Archive didn’t discontinue its daily recordings. Let’s listen now to the local news report that was broadcast on the evening of December 21st, 1973, which includes sound bites from both Paul Simpson and Val Sanford.

Reporter: [08:01] This is the Joint University Library on the Vanderbilt campus. In this building, ever since August of 1968, the library has been videotaping the evening 30-minute newscasts of each of the three major networks and storing them. Vanderbilt University asserts that nowhere in the country except in this building, not even at the networks’ headquarters themselves are complete videotape records kept of the evening news broadcasts. The videotapes of the newscasts are made off the air from local stations. The Director of the Television News Archives said in an interview several weeks ago, “The storing of the tapes is important for historical and academic purposes.”

Paul Simpson: [08:40] We felt that it should be taped, if for nothing else, for use of historians and scholars somewhere off in the future, but also because we felt that so many people were seeing it every evening, that it should be available for current study just as newspapers and magazines are.

Reporter: [08:58] Not only are the tapes kept on record here, but excerpts of them are available to anybody who’s interested in a particular subject and how television news reported it. A fee is charged to send the tapes out to scholars in other cities, and that’s what upsets the network. An attorney for CBS told us today that since April 16th of this year, the CBS Evening News with Walter Cronkite has been copyrighted in the Library of Congress and can’t be recorded or distributed without a license.

Val Sanford: [09:23] CBS has been endeavoring, since they first learned of this program to work out some way in which the valuable program, and it is a valuable program, could be continued, and at the same time, CBS’s valuable property rights could be protected. There have been negotiations that have been going on throughout this period in an effort to arrive at some sort of a resolution of both important rights. Unfortunately, we haven’t been able to arrive at any sort of proposition which Vanderbilt would accept.

Reporter: [10:05] CBS and Vanderbilt have been negotiating for some time over the copyright situation on these tapes. At one point, CBS even offered to give Vanderbilt a no-charge copyright license to allow them to make the recordings as long as they did not provide them to anyone outside the building for viewing. A source close to those negotiations says there have been hawks and doves on both sides. It looks like the hawks are ruling the roost right now. Allen Muse, Eyewitness News, Vanderbilt University.

Russ: [10:34] Jeff Carr, who was Vanderbilt’s legal counsel during the lawsuit years, and for many years afterward, once jokingly remarked at an event attended by Paul Simpson himself, that when people in the Vanderbilt administration would express their concern about CBS’s objections to the TV News Archive, Paul would respond by telling them not to worry, because CBS would never actually sue us. But it was no laughing matter for Vanderbilt when the suit was filed. During a recent conversation with former Vanderbilt Library Director Frank Grisham, who is now nearing his 90th birthday, I asked him about that.

[11:11] What do you remember about the lawsuit and Vanderbilt’s response to it?

Frank Grisham: [11:17] Vanderbilt was worried considerably about the negative exposure. But, Jeff Carr, bless his heart, and I think the world of that guy, he managed to contain the campus, particularly the chancellor, to where it did not backfire. We handled, I thought, with Paul’s help, the solution to this. The suit surprised us all but that suit had its advantages and disadvantages. It gave us very interesting publicity. The use picked up. Were you here when that suit…?

Russ: [12:16] We were both here as staff employees.

John Lynch: [12:18] But we really didn’t know much about what was going on.

Russ: [12:21] Yeah, we were both here just as staff employees, so we would hear every so often. I can remember JP coming back from a deposition one day just all wrung out because [laughs] they’d been grilling him all afternoon, those CBS lawyers.

Frank: [12:35] They got me, too.

Russ: [12:37] Oh, yeah, did they?

Frank: [12:37] Oh, yeah. Oh, my. Oh, gee.

Russ: [12:40] Maybe you could talk a little bit about that.

Frank: [12:43] They really grilled me about the purpose of this organization. “You’re taking money out of our bank account.” “You are competing with us.” But they were not keeping them. Paul had done this considerable effort to find out what the networks were doing. Were they keeping them? Was anyone in the nation keeping them? “We don’t want to duplicate,” Paul said. But we couldn’t find anybody, and I was at that time on the board of the Association of Research Libraries. I had a six-year term there. It was 130 of the major academic libraries. At one of the meetings of the board, and in turn, of the full membership, I brought this subject up and asked them if anybody knew where this was being done, and they didn’t, which really cleared the way for us to move ahead, because it wasn’t being done.

John: [14:11] I had talked to a lot of other institutions and they all told me that, to them, the biggest surprise, after the lawsuit started, was that Vanderbilt didn’t just cave in, because they all felt that their institutions would have.

Frank: [14:30] The easy way out would have been to cave in. There was encouragement from Paul Simpson’s circle, and certainly with my friends, that we not cave in. But we could have folded, because it was a nasty thing for a university to be sued by CBS. The other networks, I talked to each of them, they didn’t consider us a problem and they didn’t want to get involved in what CBS was doing.

Russ: [15:14] So what did motivate CBS then to file their lawsuit? Lucas Hilderbrand offers this explanation.

Lucas: [15:21] For CBS, they saw there was a potential developing markets with these new technologies to be able to license or sell the news as an aftermarket. For instance, finding ways to market news packages to schools and universities. On the one hand, they were interested in a potential but not yet existing aftermarket for their news. So there’s the financial piece of it, but they were also concerned that what Vanderbilt was doing was re-editing their content. There were fears that they would be misrepresented if people could just re-edit what they were doing and present it in a particular way that maybe misrepresented what CBS was actually doing.

[16:14] And all of these early claims about media bias coming from Agnew and certain other from primarily in the Republican Party, were typically target at CBS and they were coming directly out of the screenings of people seeing things that had been documented in the late ’60s. They were very aware that an emergent attention to television news and this argument of news bias, mostly from Republicans, questioned their credibility and that they obviously saw that as a threat to their viability and their credibility with the public opinion.

Russ: [16:56] Richard Nixon’s Vice President Spiro Agnew had established himself as a vocal critic of the news media’s coverage of the Vietnam War and the Nixon White House. An early episode of “60 Minutes,” broadcast on November 25th, 1969, underscores Professor Hildebrand’s point that CBS was concerned about challenges to their credibility. Here’s the opening minute of that broadcast, which includes both Agnew and CBS Evening News anchor Walter Cronkite.

Spiro Agnew: [17:26] The question is, “Are we demanding enough of our television news presentations and are the men in this medium demanding enough of themselves?” Is it not fair and relevant to question its concentration in the hands of a tiny and closed fraternity of privileged men, elected by no one, and enjoying a monopoly sanctioned and licensed by government? The views of the majority of this fraternity do not, and I repeat, not represent the views of America.

Unidentified questioner: [18:00] Did you sense any hints of government control of network news coverage in the first Agnew speech concerning the news media?

Walter Cronkite: [18:06] Yes, indeed. I certainly did. The mere fact that the Vice President of the United States made these statements and recalled rather pointedly that the radio and television stations in this country are federally licensed, seemed to me hint enough.

Mike Wallace: [18:25] I’m Mike Wallace.

Harry Reasoner: [18:26] I’m Harry Reasoner. Tonight’s 60 Minutes is devoted entirely to Vice President Agnew’s criticism of the press, particularly broadcast journalism.

Lucas: [18:36] So I think one of the things that we see is that the network news, in particular, CBS, which was the most watched and highest rated, had the position that was very centrist, but also that this was the major and unified news source for the whole country. It did have an enormous influence in terms of the kinds of information people were getting in a way that doesn’t exist anymore. But also, the other thing that we see is because it had that kind of cultural position, it was trying to do whatever it could to avoid perceptions that it was a mouthpiece for any particular political position. The Republican Administration saw any kind of criticism to what they were doing as being biased, but I think CBS understood itself as trying to be as objective and neutral as possible.

Russ: [19:33] But if politics was a factor in CBS’s decision to file their lawsuit, it was also a factor in the lawsuit’s outcome. Over the next three years, the lawsuit proceeded slowly as motions to dismiss were denied, depositions were taken, briefs were filed, and various other motions and countermotions were made. But while CBS pursued a judicial remedy through the courts, Vanderbilt, or more accurately Paul Simpson, pursued a legislative remedy through Congress. As Vanderbilt itself couldn’t lobby members of Congress without risking its tax exempt status, it was up to Simpson, acting as a private citizen, to be an advocate for language in the new copyright law that would permit the continuation of the Archive. Here’s his own recollection of his involvement during this period.

Paul: [20:22] First of all, when that copyright bill went to the floor of the Senate in ‘74, I believe, it contained provisions which would have made it impossible for anybody to do anything about copying audiovisual material. Senator Baker and some other senators, but primarily Senator Baker, introduced an amendment from the Senate floor to permit, as he stated, operations such as the Vanderbilt operation to continue and to be done, and that was approved. The bill was not passed that session and they had hearings in the House the next session on the bill before the Judiciary Committee, a sub-committee of the Judiciary Committee. I told them at that time that if anybody appeared against Senator Baker’s amendment, then I would like to appear for it.

[21:08] CBS did ask to appear against Senator Baker’s amendment and so I did appear as an individual. I paid my own expenses and went strictly and so identified myself at all times as an individual, and testified. There was a good deal of pro and con on it, but the bill was passed for that amendment, with the addition of only two words, “by lending”, “loan by lending.” The “by lending” part was added, which suited Senator Baker and certainly suited me, because that’s what I thought ought to be done anyhow, and so that new copyright bill was passed.

Russ: [21:48] John Lynch and I also talked with Frank Grisham about the role that Paul Simpson and Senator Howard Baker played in getting language added to the copyright bill that ensured the continuation of the Archive’s activities.

Russ: [21:58] Do you recall anything about whatever it took to get Howard Baker interested in inserting that provision in the copyright law?

Frank: [22:08] It was Paul Simpson who persuaded Baker, and that saved us.

John: [22:15] Yeah, because Baker was key because he was the Majority Leader at the time.

Frank: [22:21] Yeah.

Russ: [22:21] He went to Washington…

Frank: [22:23] Oh, yeah. Yeah.

Russ: [22:24] …and met with Baker?

Frank: [22:28] Which I couldn’t have done, the chancellor couldn’t have done. Politically Paul was positioned to get Baker and Gore was behind it, he was with us. It’s an interesting political history here that we’re talking about.

Russ: [22:50] Yes, it’s certainly an interesting chapter in Vanderbilt’s own history and also in our nation’s cultural history, driven by an appreciation for the growing influence of televised news and distilled into the idea that whatever its perceived political leanings might be, this relatively new but increasingly pervasive way of acquiring information about the wider world needed to be preserved.

Russ: [23:13] Speaking to the National Association of Broadcasters in 1973, Senator Baker said he was appalled that the networks themselves had “…no voluntary system for the permanent retention and cataloging of major historical events for posterity.” Over the next three years, he became determined to shepherd legislation through Congress that would remedy that situation. Here’s Jim Pilkington’s concise recap of how CBS’s lawsuit came to an end.

Jim: [23:42] The case was in the court until December the 20th, another Christmas present, 1976, when it was dropped after the new copyright law was published, which permits any library meeting general standards, to do, with respect to television, “audiovisual news” it’s called, regional, local and national audiovisual news, essentially, what it is we are doing. The Vanderbilt Television News Archive is not specifically mentioned in the law, but it is mentioned in the supporting documents to the copyright law as being the type of operation that the Congress did not want to see the law preclude with respect to audiovisual news. After that, Gerald Ford signed that into law in October of ‘76. It did not become effective until January of ‘78, but in December of ‘76, after it had been signed by Ford, the suit was dropped by CBS and Vanderbilt without prejudice.

Russ: [24:46] Toward the end of my conversation with Professor Hilderbrand, I asked him the what if question. That is, what did he think would have happened if Senator Baker hadn’t succeeded in creating the legal framework for the preservation of audiovisual works, and instead the lawsuit had gone to trial?

Lucas: [25:03] Based on a couple of conversations, my sense was that the Copyright Office was trending towards recognizing CBS’s copyright, and that without a legal protection for archives or for fair use, that CBS probably would have won the lawsuit. My sense is that, a final decision in the lawsuit was postponed because there was a sense that the law was going to change in the next year and these things were in pipeline, and so they dropped the suit ultimately because they knew that it was going to be undone by the new legislation.

Russ: [25:42] Most of the major figures on the Vanderbilt side of the story, Paul Simpson, Jeff Carr, Jim Pilkington, Alexander Heard, Howard Baker, are gone now, as are most of those on the CBS side, including those we’ve heard from in some of the audio excerpts we’ve listened to, Val Sanford, Harry Reasoner, Mike Wallace, Walter Cronkite.

Russ: [26:04] Interestingly, in 1993, Cronkite was approached by Vanderbilt through John Seigenthaler, who was then heading up the Freedom Forum First Amendment Center at Vanderbilt. In response to a letter from Vanderbilt Chancellor Joe Wyatt, Cronkite said, “It does seem to me that the preservation of the Archive and the continuing operation of it is a matter of great importance, and more particularly, that it is something that warrants much greater support by the Freedom Forum.”

Russ: [26:39] Earlier, we heard Walter Cronkite articulate CBS’s response to a 1969 speech by then Vice President Spiro Agnew. Lucas Hilderbrand concluded my conversation with him by sharing his thoughts about some of the similarities he sees between the political climate of the Nixon era and now, and about Vanderbilt University’s contribution to consistently documenting a specific portion of it across the decades.

Lucas: [26:57] What’s interesting to me at this particular moment to revisit is that history is cyclical and so we’re seeing politicians accusing the news of bias, which we see cyclical as well. Of course, in ‘68 or so, we see a lot of critiques, particularly coming out of Spiro Agnew, but really as kind of a mouthpiece for the Nixon Administration, really hammering a point of a supposed liberal bias in the news. Essentially, what that meant is that the news was reporting things that they felt undermined their political power and their political decision.

Lucas: [27:47] What we see happening in the last year, year-and-a-half, of course, is that the language has changed from bias to just fake news. This attempt to discredit news organizations that are reporting on what the Administration is doing, or, for the most part, even claiming to be truth about the state of the country, or the world, or of facts, or of science, or what have you. We’ve seen this curious return to some of the same rhetoric but going even further. Not just suggesting that the news organizations have a political agenda, but discrediting them totally, which even the Nixon Administration would never do. So I think in a particular moment where we see politicians trying to rewrite history, even recent history as far as yesterday’s tweet or yesterday’s news conference, and trying to bend the meanings, or rewrite the claims of what was said or what was done, that the kinds of things that Vanderbilt is doing are absolutely essential in terms of having access to what was being reported, what was being said, what the politicians actually say in a particular moment and that that needs to exist and we need to have access to those things. I think we need to have an organization, particularly one that isn’t actually run by the government that exists as much as possible as a neutral party to objectively document those kinds of things.

Russ: [29:25] This has been a story that played out on stages from Tennessee to Washington, DC, and involved a broad range of characters, from private citizens and academic administrators to corporate attorneys and government leaders. While it took the efforts of a number of people to establish the legal right to collect these broadcasts, at the core of the story has been an idea agreed upon by just about everyone we’ve mentioned. That is, that in some form, there should be an accessible repository for audiovisual news as presented to the American people by the major American news organizations. As it turns out, this accessible repository has been located at Vanderbilt University now for almost 50 years. We hope you have a better understanding now of how and why that came to be. I’m Russ Mason, and for all of us here at the Vanderbilt Television News Archive, we thank you for listening.